may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
Mutual Service Casualty Insurance Company,
Filed June 22, 1999
Hennepin County District Court
File No. 9812285
George H. Smith, Trawick & Smith, P.A., Suite 702, 330 Second Avenue South, Minneapolis, MN 55401 (for appellant)
Paul C. Peterson, Sarah E. Morris, Lind, Jensen & Sullivan, P.A., 150 South Fifth Street, Suite 1700, Minneapolis, MN 55402 (for respondent)
Considered and decided by Harten, Presiding Judge, Klaphake, Judge, and Willis, Judge.
Respondent, the insurer of an individual who injured appellant by driving a car into her, obtained summary judgment releasing it from liability. Because we conclude both that the policy's exclusion of intentional acts precluded coverage and that the incident was not an accident, we affirm.
[S]uddenly [Chamberlain] drove up to [Dogan], and got out of the car and left it running and said, "what did you say to the supervisor?" * * * [Chamberlain] then ran back into the car and the car was close to [Dogan] at this time. [Chamberlain] then struck [Dogan] with her car on the left side of her leg. [Dogan] was so shocked and began to say "Why are you trying to kill me?" [Chamberlain] looked out of her window and said, "If I don't get you now, I'm going to hang around and when you're going to work, I will get you and run you over." [Chamberlain] then looked around as if to see if anyone was around and put the car in reverse, and tried to strike [Dogan] again.
At the time of this incident, Chamberlain was insured by MSI under a policy reading in relevant part:
We will pay damages for bodily injury or property damage for which any insured becomes legally responsible because of an accident from the maintenance and use of your insured car.
* * * *
We do not provide liability coverage:
1. For any person for bodily injury or property damage:
a. Caused by intentional actions of an insured, or at the direction of an insured, where the resulting damages are reasonably foreseeable.
After Dogan sued Chamberlain, alleging negligence, MSI sued both Dogan and Chamberlain, alleging that it was not liable because the incident was not an accident and because Chamberlain's acts were intentional. MSI was awarded summary judgment on the ground that the policy's exclusion of intentional acts relieved it of liability. Dogan challenges the summary judgment.
[T]he necessary intent [for the intentional acts exclusion to apply] may be established either by proving an insured's actual intent to injure or by inferring such intent as a matter of law. * * *
We have considered this question in a number of other contexts and have established a general rule that the inference of intent arises when the nature and circumstances of the insured's act were such that harm was substantially certain to result.
* * * *
The determination to infer intent as a matter of law results from a case by case factual inquiry, not a bright line rule of law. More specifically, the facts of particular importance are those tending to show the likelihood of the harm--the greater the likelihood of the harm occurring, the more reasonable it is to infer intent.
R.W. v. T.F., 528 N.W.2d 869, 872-73 (Minn. 1995). Even assuming arguendo that Chamberlain's actual intent to injure Dogan could not be proved, that intent could be inferred as a matter of law because of the great likelihood of harm occurring when Dogan was struck by Chamberlain's moving car.
Appellant relies on State Farm Fire & Cas. Co. v. Wicka, 474 N.W.2d 324 (Minn. 1991), to argue that the intentional acts exclusion does not apply unless MSI can show not only that Chamberlain struck Dogan, but also that she intended to strike Dogan and to cause bodily injury. But Wicka does not support Dogan's argument. First, it is distinguishable on its facts: it concerned the capacity of a mentally impaired individual to form the requisite intent, and there is no suggestion that Chamberlain was mentally impaired. Second, Wicka holds that "[t]he inference [of intent] arises when the nature and circumstances of the insured's act were such that harm was substantially certain to result." Id. at 329. Harm is substantially certain to result when a driver uses a car to strike a pedestrian. If there were any doubt that Chamberlain intended to injure Dogan, that intent could be inferred as a matter of law.
Even if coverage were not precluded by the policy's intentional acts exclusion, the incident here was not an accident. This court and the supreme court have repeatedly addressed the definition of "accident" in the context of insurance policies.
[The issue is] whether the wrongful or tortious event was an accident. In Hauenstein [v. St. Paul-Mercury Indem. Co., 242 Minn. 354, 358, 65 N.W.2d 122, 126 (1954)], the wrongful event was the shrinking and cracking of the plaster which was unexpected, unforeseen, and undesigned, and therefore was an accident. In both Milbank [Ins. Co. v. B.L.G., 484 N.W.2d 52 (Minn. App. 1992, review denied (July 16, 1992)] and R.W. [v. T.F., 510 N.W.2d 231 (Minn. App. 1994)] reversed on other grounds, 528 N.W.2d 869 (Minn. 1995)], the wrongdoing was the transmission of herpes, which was found to be negligent. In contrast, the wrongdoing in Sage [Co. v. Insurance Co. of N. Am., 480 N.W.2d 695 (Minn. App. 1992)], the termination of the employee, was expected, foreseen, and designed, and therefore not an accident. Likewise, in this case, the wrongdoing was the tackle, which the jury found was not "unexpected, unforeseen or undesigned," and was not negligent.
We hold that in cases such as this, where there is an allegedly tortious and non-consensual act, * * * an "accident" is an "unexpected, unforeseen, or undesigned" happening, and that it includes negligently caused injury that was not intentional. The "happening" is the wrongful or tortious act or event and, accordingly, [the issue is] whether the wrongdoing was an accident.
Gilman v. State Farm Fire & Cas. Co., 526 N.W.2d 378, 383 (Minn. App. 1995). Dogan herself said that Chamberlain deliberately drove at her and struck her with a car, and it is from Chamberlain's perspective that we must consider whether this was an "accident." See McIntosh v. State Farm Mut. Auto. Ins. Co., 488 N.W.2d 476, 479 (Minn. 1992) ("in the context of security for tort liability an `accident' should be considered `from the point of view of the person causing the harm'"); Nygaard v. State Farm Ins. Co., 591 N.W.2d 738, 741-42 (Minn. App. 1999) (when an insured committed suicide by driving into another vehicle, her insurer was not liable for injuries to its driver because the incident was not unexpected or unintended from the decedent's perspective).
We conclude that MSI is not liable for Dogan's injuries because (1) Chamberlain's act was intentional and (2) the incident was not an accident within the meaning of the policy.
 On the basis of this account, Dogan obtained a protective order and Chamberlain was charged with a gross misdemeanor, harassment/stalking with intent to injure, in violation of Minn. Stat. § 609.749, subd. 2(a)(1) (Supp. 1997), and a misdemeanor, fifth degree assault, in violation of Minn. Stat. § 609.224, subd. 1(2) (1996). Intent is an element of both charges.
 We grant MSI's motion to strike those portions of appellant's appendix not included in the record and references to them in appellant's brief.
 Dogan's statement that Chamberlain struck her with the car and then shouted, "If I don't get you now, I'm going to hang around and when you're going to work I will get you and run you over" arguably moots the issue of whether Chamberlain intended to injure Dogan.